Corbin v. Farber CA4/1

Filed 4/22/15 Corbin v. Farber CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

DONNA CORBIN, D066034

Cross-complainant and Respondent,

v. (Super. Ct. No. 37-2013-00069815-
CU-OR-CTL)
RODOLFO FARBER et al.,

Cross-defendants and Appellants.

APPEAL from an order of the Superior Court of San Diego County, Timothy B.

Taylor, Judge. Reversed with directions.

Daley & Heft, Lee H. Roistacher, Samuel C. Gazzo for Cross-defendants and

Appellants.

Law Offices of Daniel J. Williams and Daniel J. Williams for Cross-complainant

and Respondent.
 Cross-defendants and appellants Rodolfo Farber, Alfredo Jaime, and Jaime

Partners, Inc. appeal from an order denying their Code of Civil Procedure1 section

425.16 special motion to strike respondent and cross-complainant Donna Corbin's cause

of action for defamation based on statements made by Farber and Jaime in three e-mails.

Although the trial court found appellants met their burden to show Corbin's defamation

cause of action arose out of protected petitioning activities under the anti-SLAPP law, it

denied the motion, ruling the cause of action was not barred by the litigation privilege of

Civil Code section 47, subdivision (b) and that Corbin had established a probability of

prevailing on the merits of her claim. Appellants contend the trial court erred because the

litigation privilege is an absolute bar to Corbin's action, and the e-mails were not

defamatory. They ask us to treat Corbin's defamation cause of action as separate claims

based on each alleged defamatory statement, and to strike those portions of the claims on

which Corbin fails to establish a reasonable probability of prevailing on the merits.

We conclude that while Corbin's defamation cause of action falls within the

purview of the anti-SLAPP statute, she cannot demonstrate a probability of prevailing on

the claim because it is barred by the litigation privilege. Accordingly, we reverse the

order and direct the court to enter a new order granting appellants' motion.

1 Statutory references are to the Code of Civil Procedure unless otherwise specified.
Section 425.16 is commonly referred to as the anti-SLAPP (Strategic Lawsuit Against
Public Participation) statute. (Navellier v. Sletten (2002) 29 Cal.4th 82, 85.)

2
 FACTUAL AND PROCEDURAL BACKGROUND2

Rodolfo Farber is the manager of Jie Callo, LLC (Jie Callo), which is a tenant and

lessee of unit 102 (the property) in a mixed residential and commercial condominium

project known as the Pacific Terrace (Pacific Terrace). In 2013, the property's owner,

Constantine Coss as trustee of the Coss Family Trust (Coss), authorized Jie Callo to

begin construction of tenant improvements on the property, at which Farber was planning

to operate a restaurant. Farber retained Jaime Partners, Inc. as the general contractor. At

that time, Corbin was the president of Pacific Terrace's board of directors and a member

of its architectural committee.

In April and May 2013, Pacific Terrace sent a cease and desist letter to Coss and

issued notices of violation based on Jie Callo's commencement of construction without an

architectural review application and the placement of unauthorized window coverings on

the unit. Coss eventually submitted an incomplete architectural review application for

the restaurant's construction. In July 2013, Jai Callo recommenced construction, having

been given provisional permission to do so by Coss's property manager Athena Harman

and Coss's attorneys. In July and August 2014, attorneys for Coss and Pacific Terrace

exchanged letters pertaining to the property. Around August 20, 2014, Jaime Partners,

Inc. placed unauthorized notices on resident's cars regarding work to be done and asking

2 In opposition to appellants' anti-SLAPP motion, Corbin filed 14 evidentiary
objections. Farber does not challenge the trial court's rulings on those matters, and thus
we omit any facts as to which the court sustained Corbin's objections. We otherwise state
the facts in the light most favorable to Corbin, the party opposing the anti-SLAPP
motion. (See Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)

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them not to park in their regular parking spaces. Pacific Terrace's property manager Sean

Sutton e-mailed Harman, telling her such notices were prohibited. Days later, Jie Callo's

attorney Adriana Gutierrez informed Sutton via letter that she had been authorized to file

a lawsuit against him and his company for damages caused by their "consistent and . . .

bad faith interference with Jie [C]allo's work of improvements and alterations" at the

property. She demanded Sutton cease further actions interfering with the work and

provide Jie Callo full access to the common areas, and advised him failure to do so would

result in an immediate lawsuit. About this time, Corbin proposed to meet with Coss to

resolve the problems occurring at the unit. Though Jie Callo continued to place

unauthorized notices on residents' cars, in late August 2013, Pacific Terrace's

architectural review committee approved Coss's architectural review application with

some conditions.

On September 13, 2013, Farber reported via e-mail an incident that had assertedly

occurred that day involving Corbin. Farber sent the first e-mail, titled "Lady traspassed

[sic] and attacked me," to Sutton and copied it to Jaime, Coss, Harman, and attorney

Gutierrez. That e-mail read: "Sean, [¶] This lady traspassed [sic] into the property

Having [sic] my standard meetings with subs, literally slapped me. This is so wrong. I

have never ever had that experience in my life. So I am calling the cops to put a

complaint I am not allowing this anymore. I do not understand how you think this can be

allowed. This is ridiculous. [¶] Adriana, please start a restraining order on her, you guys

do not understand how uncomfortable I am feeling right now. I really need to press

charges now. [¶] We have witness including my partner Alfredo."

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 Several minutes later, Jaime sent his own e-mail to Coss and Harman, copied to

Sutton, Gutierrez and Farber. Jaime wrote: "Athena & Constantine [¶] We just can

[sic] believe this situation. We are dealing with a very unique situation and the main

reason why this project will fall down if this resident continues to trespass and assault our

vendors and once we open she could be a liability for the patrons. [¶] So incredible sad

[sic]."

About an hour later, Farber responded to Jaime's e-mail, directing the following to

attorney Gutierrez: "Adriana, [¶] Need to put a restraining order or whatever is needed

on her. She will be a problem and I am really concerned now about her and everybody's

safety on site. This lady is clearly insane. Please start process to stop her, letters, court,

whatever is needed. She needs to stay away. [¶] Thank you!"

Later that evening, Jaime sent an e-mail to Coss, Harmon and Farber stating it was

"important we all meet next week and go over today's incident and plan for the next

course of action against this person that's is [sic] causing damage to our project soon to

be restaurant."

On October 1, 2013, Farber filed a request for a civil restraining order against

Corbin. Two days later, Coss sued Corbin for injunctive relief, trespass, nuisance, and

breach of Pacific Terrace's conditions, covenants and restrictions (CC&Rs).

The following month, Corbin cross-complained against Farber, Jaime and Jaime

Partners, Inc. asserting causes of action for defamation/libel per se and trespass. In

support of her defamation cause of action, Corbin alleged Farber's and Jaime's e-mails

were false and libelous on their face as they charged her with the crimes of trespass,

5
assault and battery, and tended to injure her in her occupation as the volunteer president

of Pacific Terrace's board of directors. Corbin also alleged the e-mails "expose[d] [her]

to hatred, contempt, ridicule, and obloquy."

In December 2013, after considering Farber's testimony, the trial court denied

Farber's request for a permanent restraining order.

Appellants thereafter filed a special motion to strike Corbin's defamation cause of

action under section 425.16.3 They argued the September 2013 e-mails were privileged

communications and were acts in furtherance of their right of petition and free speech

under the United States and California Constitutions, as well as statements made by and

to interested parties in contemplation of threatened litigation for the purpose of providing

Pacific Terrace notice of imminent litigation and demanding Corbin cease her conduct.

They asserted the e-mails constituted a direct instruction to counsel to initiate an

application for a civil harassment restraining order. Appellants further argued their

communications were absolutely privileged under Civil Code section 47, subdivision (b),

but even if they were not, Corbin could not demonstrate a likelihood of success on the

merits on her claim because appellants had obtained a preliminary injunction barring

Corbin from harassing, intimidating or disturbing the tenants and their subcontractors at

the property.

3 Appellants' anti-SLAPP motion was combined with a demurrer and motion to
strike damages allegations. They set the anti-SLAPP motion for hearing separately from
the other motions.
6
 Corbin opposed the motion. She argued appellants had not met their threshold

burden to show the e-mails arose from protected conduct; that the e-mails were not in

connection with litigation as recipients Sutton and Pacific Terrace had no interest in

litigation against Corbin individually, neither was a respondent in Farber's petition for a

civil harassment restraining order, and neither was a defendant in any other litigation

commenced by appellants. She argued the e-mails were not protected by the litigation

privilege because they were not published with a good faith belief in a legally viable

claim or in serious contemplation of litigation. Specifically, Corbin argued the e-mails

did not constitute a classic prelitigation demand letter because they were not written by

an attorney, not addressed to Corbin, did not set forth any steps to be taken to avoid

litigation, and appellants did not consult with their attorney before sending them,

demonstrating they fell outside the privilege. As for the second e-mail, Corbin argued its

language—"Need to put a restraining order or whatever on her"—and—"Please start

process to stop her, letters, court, whatever is needed"—was a "clear indication that [the]

statements had not 'ripened into a proposed proceeding that is actually contemplated in

good faith and under serious consideration as a means to obtaining access to the courts

for the purpose of resolving the dispute.' "

Corbin also argued the e-mails were not privileged because they constituted a

"tactical ploy" to induce the settlement of the ongoing nonlitigated dispute between

Pacific Terrace and Coss relating to the restaurant's asserted noncompliance with Pacific

Terrace's CC&Rs. She argued the e-mails threatened to present criminal charges to

7
obtain an advantage in the unlitigated dispute between Pacific Terrace and Coss over

CC&R violations, and they had no connection or logical relation to the present action.

Finally, Corbin argued she could prove a probability of prevailing on the merits in

that the e-mails on their face imputed assault, battery, trespass and insanity to Corbin, and

she had evidence—via the reporter's transcript of the civil restraining order hearing—that

Farber had admitted she did not slap him. Corbin presented her own declaration denying

she trespassed, slapped or attempted to slap anyone, or verbally or physically threatened

anyone.

The trial court denied appellants' anti-SLAPP motion. It ruled they had met their

threshold burden of establishing Corbin's defamation cause of action was protected under

section 425.16, subdivision (e)(2) of the anti-SLAPP statute.4 The court, however,

rejected application of the litigation privilege, finding the statement in the e-mails stating

"this lady is clearly insane" did not relate to litigation under serious consideration: "No

litigation was contemplated, seriously or otherwise, to have Corbin declared 'insane' or

4 The trial court found the September 2013 e-mails related to substantive issues in
anticipated litigation and were directed to persons that had some interest in the
anticipated litigation. Specifically, relying in part on Neville v. Chudacoff (2008) 160
Cal.App.4th 1255, the court ruled: "The statements giving rise to [the finding that the
e-mails related to substantive issues in anticipated litigation] include those related to
'start[ing] a restraining order' and Mr. Farber's statement, 'please start process to stop her,
letters, court, whatever is needed.' These statements, along with the statements regarding
the confrontation between Mr. Farber and Ms. Corbin, clearly relate to substantive issues
in anticipated litigation." It further ruled: "Here, the e[-]mails at issue were directed to
property owners, managers, attorneys, and a witness. Under Neville, these parties have
some interest in the litigation. In sum, for the purposes of anti-SLAPP protection, the
e[-]mails at issue were made in connection with anticipated litigation." Thus, the court
ruled appellants had met their burden to show Corbin's defamation cause of action arose
from protected activity.
8
subject her to a [Welfare and Institutions] Code [section] 5150 hold (or anything of the

sort)." It then ruled Corbin had established the requisite "minimal merit" to her

defamation claim: "The evidence submitted with [Corbin's] opposition suggest[s], inter

alia, that, contrary to the representations made in the e[-]mails at issue, Ms. Corbin likely

never slapped or attempted to slap Mr. Farber. . . . Mr. Farber's own testimony from the

restraining order hearing indicates that, at most, Ms. Corbin raised her hand in his

presence. That testimony, taken with the declarations submitted in support of [Corbin's]

opposition and the contrary content of the e-mails at issue, establishes the minimal merit

necessary: that the e-mails contained false statements about Ms. Corbin and that she was

subsequently harmed by those statements."

DISCUSSION

I. Section 425.16 Principles and Standard of Review

Section 425.16 provides: "A cause of action against a person arising from any act

of that person in furtherance of the person's right of petition or free speech under the

United States Constitution or the California Constitution in connection with a public issue

shall be subject to a special motion to strike, unless the court determines that the plaintiff

has established that there is a probability that the plaintiff will prevail on the claim."

(§ 425.16, subd. (b)(1).) The statute identifies four classes of conduct that come within

its protection, including "any written or oral statement or writing made before a . . .

judicial proceeding" or "any written or oral statement or writing made in connection with

an issue under consideration or review by a . . . judicial body, or any other official

proceeding authorized by law." (§ 425.16, subd. (e)(1), (2).) The analysis of appellants'

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anti-SLAPP motion "involves two steps. 'First, the court decides whether the defendant

has made a threshold showing that the challenged cause of action is one "arising from"

protected activity. [Citation.] If the court finds such a showing has been made, it then

must consider whether the plaintiff has demonstrated a probability of prevailing on the

claim.' [Citation.] 'Only a cause of action that satisfies both prongs of the anti-SLAPP

statute—i.e., that arises from protected speech or petitioning and lacks even minimal

merit—is a SLAPP, subject to being stricken under the statute.' [Citation.] We review an

order granting or denying a motion to strike under section 425.16 de novo." (Oasis West

Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819-820.)

II. Appellants' Threshold Showing

In her respondent's brief, Corbin argues that the trial court erred in its ruling on the

threshold anti-SLAPP inquiry because Farber's and Jaime's September 2013 e-mails did

not relate to litigation contemplated in good faith and under serious consideration at the

time the e-mails were sent. She asserts that Farber later admitted in connection with his

request for a civil harassment restraining order that he lacked good faith in that he had no

grounds for such an order. Appellants respond that the court correctly found the e-mails

constituted prelitigation statements protected by the anti-SLAPP statute: statements sent

to counsel showing appellants genuinely and in good faith contemplated litigation,

namely the application for a restraining order, which was actually filed two weeks later.

We review Corbin's contentions notwithstanding the absence of a cross-appeal.

(Compare Delois v. Barrett Block Partners (2009) 177 Cal.App.4th 940, 943 [plaintiff

cross-appealed from portion of order striking causes of action on grounds none of them

10
satisfied the first prong of section 425.16]; Clark v. Mazgani (2009) 170 Cal.App.4th

1281, 1285.) Corbin's argument that appellants did not meet their threshold anti-SLAPP

burden, if successful, would result in our affirming the order denying the motion. " 'It is

a general rule a respondent who has not appealed from the judgment may not urge error

on appeal. [Citation.] A limited exception to this rule is provided by . . . section 906,

which states in pertinent part: "The respondent . . . may, without appealing from [the]

judgment, request the reviewing court to and it may review any of the foregoing

[described orders or rulings] for the purpose of determining whether or not the appellant

was prejudiced by the error or errors upon which he relies for reversal or modification of

the judgment from which the appeal is taken." "The purpose of the statutory exception is

to allow a respondent to assert a legal theory which may result in affirmance of the

judgment." ' " (In re Adoption of H.R. (2012) 205 Cal.App.4th 455, 336-337, quoting

Hutchinson v. City of Sacramento (1993) 17 Cal.App.4th 791, 798; see Citizens for

Uniform Laws v. County of Contra Costa (1991) 233 Cal.App.3d 1468, 1472; Central

Manufacturing Dist., Inc. v. Board of Supervisors of Los Angeles County (1960) 176

Cal.App.2d 850, 857 [a respondent may assert a legal theory which, if found to be sound,

should result in affirmance notwithstanding appellant's contention].)

Having considered Corbin's arguments, we conclude appellants met their burden

as to the first anti-SLAPP prong. Because section 425.16 is construed broadly (as is the

Civil Code section 47, subdivision (b) litigation privilege), "it has been established for

well over a century that a communication is absolutely immune from any tort liability if it

has ' "some relation" ' to judicial proceedings." (Healy v. Tuscany Hills Landscape &

11
Recreation Corp. (2006) 137 Cal.App.4th 1, 5, citing Rubin v. Green (1993) 4 Cal.4th

1187, 1194.) In Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106,

1115, the court stated: " '[J]ust as communications preparatory to or in anticipation of the

bringing of an action or other official proceedings are within the protection of the

litigation privilege of Civil Code section 47, subdivision (b) [citation], . . . such

statements are equally entitled to the benefits of section 425.16.' " (See also Flatley v.

Mauro (2006) 39 Cal.4th 299, 322, fn. 11; Comstock v. Aber (2012) 212 Cal.App.4th

931, 944-945; Digerati Holdings, LLC v. Young Money Entertainment LLC (2011) 194

Cal.App.4th 873, 887-888; Neville v. Chudacoff, supra, 160 Cal.App.4th at p. 1263

[communications in anticipation of litigation are considered to be under consideration or

review by a judicial body for purposes of the anti-SLAPP statute]; Rohde v. Wolf (2007)

154 Cal.App.4th 28, 35.) Thus, in Briggs, allegedly defamatory statements made by

defendants in counseling a client, who later filed a small claims action, were protected by

section 425.16 as made in anticipation of litigation. (Briggs, at pp. 1109-1110, 1114-

1115.) " '[A] prelitigation statement falls within clause (1) or (2) of section 425.16,

subdivision (e) if the statement " 'concern[s] the subject of the dispute' and is made

'in anticipation of litigation "contemplated in good faith and under serious

consideration" ' [citation]." ' " (Aguilar v. Goldstein (2012) 207 Cal.App.4th 1152,

1162, quoting Digerati Holdings, at p. 887; see also Rohde v. Wolf, at pp. 35-36.)

" 'Good faith' in this context refers to a good faith intention to file a lawsuit rather than a

good faith belief in the truth of the communication." (Digerati, at p. 887, citing Action

Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251.)

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 Here, "[t]here is no question that the filing of a civil harassment petition

constitutes protected activity." (Kenne v. Stennis (2014) 230 Cal.App.4th 953, 966, citing

Thomas v. Quintero (2005) 126 Cal.App.4th 635, 647.) Corbin's defamation claim is

based on the statements contained in the September 2013 e-mails, beginning with

Farber's e-mail containing his specific request that attorney Gutierrez begin the process of

a civil restraining order proceeding, and following with Jaime and Farber's additional

comments concerning Corbin's asserted behavior as well as request that counsel take

legal steps on the matter. Appellants' evidence shows that the very legal proceeding

proposed in the e-mails was filed about two weeks later. The statements within the

e-mails concern Corbin's alleged conduct or behavior on the day in question as well as

Farber and Jaime's reaction to it, the very subject of the dispute presented in that legal

proceeding. On our de novo review, we conclude appellants sufficiently demonstrated

that Corbin's defamation claim is based on conduct in furtherance of appellants'

constitutional right of petition, protected activity under section 425.16.

We reject Corbin's various contentions that the "emotional content" of the

September 2013 e-mails reveals that appellants did not contemplate litigation seriously or

in good faith, and that the e-mails were not sent to interested persons. She characterizes

Farber's first e-mail statements as a "knee-jerk" emotional response without pause,

reflection or legal consultation. She asserts Jaime's second e-mail makes no mention of

proposed legal action. She argues the third e-mail amounted to merely "heated

instructions" to counsel without consultation, and she maintains all of the e-mails show

the "contemplation and serious consideration of litigation" if it occurred at all, happened

13
after they were sent. We disagree with these assertions. We readily infer from

appellants' evidence, including the fact all of Farber's and Jaime's e-mails were copied to

Farber's counsel, that Farber was seriously proposing that a restraining order be sought

against Corbin and that the remaining e-mails at a minimum related to Farber's proposal

and Corbin's conduct. The subsequent filing of the application for a civil restraining

order is evidence that litigation was contemplated in good faith. (See Digerati Holdings,

LLC v. Young Money Entertainment LLC, supra, 194 Cal.App.4th at p. 888.) In the

context of all the evidence, appellants' e-mails cannot be interpreted as statements

demonstrating only a "vague 'anticipation' " of litigation (Edwards v. Centex Real Estate

Corp. (1997) 53 Cal.App.4th 15, 33), or a "mere potential or 'bare possibility' that judicial

proceedings 'might be instituted' in the future . . . ." (Edwards, at p. 36.)

As for Corbin's points concerning the timing of the e-mails and their recipients, we

are guided by Neville v. Chudacoff, supra, 160 Cal.App.4th 1255, in which similar

contentions were rejected. There, a lawyer sent a letter to his client's customers that

accused his client's former employee of trade secret misappropriation and warned

customers not to do business with him. (Id. at pp. 1259-1260.) The client filed suit four

months later, and the former employee cross-complained for, inter alia, defamation

against the client and the lawyer. (Id. at p. 1260.) The lawyer specially moved to strike

the cross-complaint under section 425.16. On appeal from the order granting the motion,

the former employee argued the letter was not protected activity because it was sent more

than four months before the client commenced litigation, the lawyer did not expressly

14
declare that his client was contemplating litigation seriously and in good faith, and the

letter was sent to customers, who were not parties to the action. (Id. at p. 1262.)

The Court of Appeal held the letter was protected, pointing out it related directly

to the client's misappropriation and contract claims, was directed to customers who the

client could reasonably believe had an interest or were potential witnesses in the dispute,

and was an attempt to stop the alleged misuse and mitigate the client's damages. (Neville

v. Chudacoff, supra, 160 Cal.App.4th at pp. 1267-1268.) The letter did not contain

statements unrelated to the allegations forming the basis for the client's claims. (Id. at p.

1268.) And it did not matter that the letter was sent before litigation was filed, as long as

the statements were made in anticipation of litigation contemplated in good faith and

under serious consideration, standards that were met in that case. (Ibid.) The court

rejected the notion that a four month period showed litigation was not "imminent," but

rather held the evidence established the letter in fact constituted a threat of impending

litigation. (Id. at pp. 1268-1269.) And the court pointed out the anti-SLAPP statute

contains no requirement that the recipient of the statement be an actual or potential

adverse party. (Id. at p. 1270.)5

5 The Neville court said: "We also reject Neville's argument that the Letter is not
protected because it was addressed to Maxsecurity's customers, against whom
Maxsecurity had no claim, rather than to Neville. Although many anti-SLAPP cases
involving prelitigation communications concern demand letters or other statements to
adverse parties or potential adverse parties [citations], there is no such requirement in the
text of section 425.16, subdivision (e)(2). That provision has been held to protect
statements to persons who are not parties or potential parties to litigation, provided such
statements are made 'in connection with' pending or anticipated litigation." (Neville v.
Chudacoff, supra, 160 Cal.App.4th at p. 1270; see also Healy v. Tuscany Hills Landscape
15
 Here, appellants' e-mails were sent to counsel, to the property owner and his

management company, and to at least one witness to the alleged incident (Jaime), persons

who Farber would reasonably consider interested in the matter of Corbin's interaction

with him concerning construction at the property. As indicated, shortly thereafter,

appellants filed the very civil restraining order proceeding proposed by the e-mails.

Evidence that the lawsuit was filed within a reasonable time of the offending statements

is an indication that litigation was contemplated in good faith. (Compare Edwards v.

Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 35 [statement made five years

before litigation commenced was not privileged] with Neville v. Chudacoff, supra, 160

Cal.App.4th at p. 1269 [statements protected by anti-SLAPP statute when litigation was

filed four months afterwards].) We conclude the content of the e-mails themselves, the

fact they were copied and addressed to counsel, and the fact appellants filed a request for

a civil restraining order against Corbin two weeks after sending the e-mails, show

Farber's and Jaime's statements pertained to the subject of the dispute over Corbin's

behavior, they made their statements to interested parties, and the statements related to

litigation that was contemplated in good faith and under serious consideration.

We reject Corbin's arguments as to what she characterizes as Farber's

"admissions" that he did not honestly or sincerely form an intent to file suit when the e-

mails were sent, but rather had "ulterior motives." She points to Farber's statement to "do

& Recreation Corp., supra, 137 Cal.App.4th at pp. 5-6 [letter from homeowners
association to nonparty association members was petitioning activity protected by both
anti-SLAPP statute and litigation privilege].)

16
whatever is needed" in his third e-mail and to Jaime's e-mail sent later in the evening on

September 14, 2013, in which he stated he, Farber, Coss and Harman should meet to

"plan the next course of action . . . ." Corbin points to part of Farber's testimony in the

civil harassment restraining order hearing in which he responded to his counsel's

question, "Can you explain how you felt? Did you feel threatened? Did you feel

scared?"6 Corbin also points to Farber's counsel's argument during the restraining order

hearing that her client's application was based partly on Farber's testimony, and partly on

"the way [Corbin] has used her position within the HOA . . . . " None of these so-called

"admissions," all of which are vague and unspecific, change our conclusions above.

Finally, Corbin misplaces reliance on Farber's admissions that he did not perceive

any attempt by Corbin to slap him, as Farber's belief in the truth of his e-mailed

statements is not relevant to the good faith analysis. (Action Apartment Assn., Inc. v. City

of Santa Monica, supra, 41 Cal.4th at p. 1251; Digerati Holdings, LLC v. Young Money

Entertainment LLC, supra, 194 Cal.App.4th at p. 887.)

6 We fail to see anything in Farber's response to counsel's question showing he did
not honestly or sincerely contemplate litigation at the time he sent his e-mails. He
answered: "Well, it's a little bit of more like powerless, okay. Because by the way I was
raised all my life and everything, I never had a problem with, you know, any kind of law
cause or anything. So for me to have a person that's a lady that's way older than me to do
that, I felt powerless because there is nothing I can do about it. I'm not going to try to
respond to her or even try to chat more. So just after talking to you and my legal
assistance, I felt that the only way to actually avoid that in the future and not feel that
way again or the people that work for me, that was the only way to do it."
17
 Having concluded appellants met their burden to show Corbin's defamation cause

of action arises from protected prelitigation activity, we proceed to the second prong of

the anti-SLAPP analysis.

III. Corbin Cannot Demonstrate a Probability of Prevailing on the Merits Because The

Litigation Privilege Bars Her Defamation Cause of Action

" 'In order to establish a probability of prevailing on the claim . . . , a plaintiff

responding to an anti-SLAPP motion must " 'state[ ] and substantiate[ ] a legally

sufficient claim.' " [Citations.] Put another way, the plaintiff "must demonstrate that the

complaint is both legally sufficient and supported by a sufficient prima facie showing of

facts to sustain a favorable judgment if the evidence submitted by the plaintiff is

credited." [Citations.] In deciding the question of potential merit, the trial court

considers the pleadings and evidentiary submissions of both the plaintiff and the

defendant . . . ; though the court does not weigh the credibility or comparative probative

strength of competing evidence, it should grant the motion if, as a matter of law, the

defendant's evidence supporting the motion defeats the plaintiff's attempt to establish

evidentiary support for the claim.' " (Taus v. Loftus (2007) 40 Cal.4th 683, 713-714.) "In

making this assessment it is 'the court's responsibility . . . to accept as true the evidence

favorable to the plaintiff . . . . ' [Citation.] The plaintiff need only establish that his or

her claim has 'minimal merit' [citation] to avoid being stricken as a SLAPP." (Soukup v.

Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 291.)

"If the plaintiff 'can show a probability of prevailing on any part of its claim, the

cause of action is not meritless' and will not be stricken; 'once a plaintiff shows a

18
probability of prevailing on any part of its claim, the plaintiff has established that its

cause of action has some merit and the entire cause of action stands.' " (Oasis West

Realty, LLC v. Goldman, supra, 51 Cal.4th at p. 820, quoting Mann v. Quality Old Time

Service, Inc. (2004) 120 Cal.App.4th 90, 106; see also Burrill v. Nair (2013) 217

Cal.App.4th 357, 379-382.)

Corbin cannot carry her burden if her defamation claim is defeated by the Civil

Code section 47, subdivision (b) litigation privilege. (Flatley v. Mauro, supra, 39 Cal.4th

at p. 323 [litigation privilege may be a substantive defense a plaintiff must overcome to

demonstrate a probability of prevailing under the anti-SLAPP law]; Comstock v. Aber,

supra, 212 Cal.App.4th at p. 953 ["The law is that to defeat a SLAPP motion, [the party

opposing the motion] must overcome substantive defenses"].)

"The litigation privilege embodied in Civil Code section 47, subdivision (b) serves

broad goals of guaranteeing access to the judicial process, promoting the zealous

representation by counsel of their clients, and reinforcing the traditional function of the

trial as the engine for the determination of truth." (Flatley v. Mauro, supra, 39 Cal.4th at

p. 324.) Given the "larger goal of access to the judicial process," the litigation privilege

has been applied to some forms of unlawful litigation-related activity like perjury, for

example, because doing so may advance those broad goals notwithstanding the

occasional unfair result in an individual case. (Ibid.) The privilege is "absolute in nature,

applying 'to all publications, irrespective of their maliciousness.' " (Action Apartment

Assn., Inc. v. City of Santa Monica, supra, 41 Cal.4th at p. 1241; Kashian v. Harriman

(2002) 98 Cal.App.4th 892, 913 [litigation privilege applies "regardless whether the

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communication was made with malice or the intent to harm. . . . Put another way,

application of the privilege does not depend on the publisher's 'motives, morals, ethics or

intent' "].)

" ' "The usual formulation is that the privilege applies to any communication (1)

made in judicial or quasi-judicial proceedings; (2) by litigants or other participants

authorized by law; (3) to achieve the objects of the litigation; and (4) that have some

connection or logical relation to the action." ' " (Hawran v. Hixson (2012) 209

Cal.App.4th 256, 282.) "The privilege ' "is not limited to statements made during a trial

or other proceedings, but may extend to steps taken prior thereto, or afterwards." ' "

(Ibid.) "However, the communication must be ' "in furtherance of the objects" ' of the

proceeding, which is ' "part of the requirement that the communication be connected

with, or have some logical relation to, the [proceeding], i.e., that it not be extraneous to

the [proceeding]." ' [Citation.] The privilege is nevertheless broadly applied and doubts

are resolved in its favor." (Hawran, at pp. 282-283.) Applicability of the privilege is a

question of law. (Kashian v. Harriman, supra, 98 Cal.App.4th at p. 913.)

We have already concluded appellants' evidence sufficiently demonstrated that

Farber's and Jaime's e-mailed statements related to proposed legal action—the later-filed

application for a civil harassment restraining order—which was seriously considered and

contemplated in good faith for purposes of the anti-SLAPP statute, even if that

proceeding was ultimately unsuccessful. As appellants point out, two of the e-mails

specifically asked attorney Gutierrez to initiate the restraining order proceedings. There

is merit to appellants' contention that their September 2013 e-mails "directly pertained to

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the subsequent restraining order action" and thus had more than just some relation to

litigation contemplated in good faith. Appellants state, "Discussing what occurred and

why some action was needed to stop Corbin's conduct, the purpose of the e-mails, and

everything said in them, related to the reasons for and the need to take some action to

stop Corbin's conduct." We conclude for purposes of Civil Code section 47, subdivision

(b), Farber's and Jaime's e-mailed statements were communications having some relation

to an anticipated legal proceeding, which were logically related to that proposed

proceeding. This is all that is necessary to render the e-mails protected by the litigation

privilege.

In rejecting application of the litigation privilege, the trial court reasoned that

Farber's statement—"This lady is clearly insane"—was unrelated to seriously

contemplated litigation, that is, a contemplated action to have Corbin declared insane,

which took the entire cause of action outside the privilege's scope. Appellants argue this

was error; that "a court cannot dissect a communication and examine individual

statements in isolation, divorcing the isolated statements from the communication's

overall context and purpose which in this case was to put a stop to Corbin's conduct."

Corbin disagrees with appellants, arguing that Farber's statement that she "is clearly

insane" is not reasonably relevant to the substantive issues in "any litigation mentioned,

contemplated, considered or actually filed by" appellants.

We are unpersuaded by Corbin's argument and the trial court's reasoning. The

anticipated legal proceeding at issue here was an application for a civil restraining order

against harassment, the subject of which necessarily pertains to the behavior and conduct

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of the person against whom the order is sought. The point of such a proceeding is prove

that the person against whom such an order is sought has engaged in unlawful violence, a

credible threat of violence, or "a knowing and willful course of conduct directed at a

specific person which seriously alarms, annoys, or harasses the person, and that serves no

legitimate purpose" and that the course of conduct is "such as would cause a reasonable

person to suffer substantial emotional distress, and . . . actually cause[s] substantial

emotional distress to the petitioner.' " (§ 527.6, subd. (b)(3)); see Thomas v. Quintero,

supra, 126 Cal.App.4th at p. 648.) Though Corbin's sanity is not strictly at issue in such

a proceeding, Farber's statement is a comment on his perception of and reaction to her

behavior, which is necessarily relevant to this inquiry. "The reasonable relevancy

requirement of [Civil Code] section 47[, subdivision (b)] is analogous to the 'in

connection with' standard of [Code of Civil Procedure] section 425.16, subdivision

(e)(2)." (Neville v. Chudacoff, supra, 160 Cal.App.4th at p. 1266.) Appellants' e-mailed

statements meet that standard.

Thus, this matter is unlike Nguyen v. Proton Technology Corp. (1999) 69

Cal.App.4th 140 (Nguyen), on which Corbin relies. In that case, an attorney for a

technology company (Proton) sent a prelitigation demand letter to another technology

company (Excelsior) in part threatening to sue Excelsior for acts of unfair competition

and misappropriation of trade secrets, and asserting that it and Nguyen, a former Proton

employee, were illegally soliciting Proton's customers. (Id. at p. 143.) The letter then

stated, falsely: "We think you should be aware that [Nguyen] was working for Proton

under a work furlough program sponsored by the Santa Clara County Probation

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Department. [Nguyen] was in prison for repeatedly and violently assaulting his wife.' "

(Id. at pp. 143-144.)

Nguyen sued Proton and its counsel for, among other claims, libel and slander

based on the demand letter's statements. (Nguyen, supra, 69 Cal.App.4th at p. 145.) On

appeal from a summary judgment in Proton's favor, the Nguyen court reversed, stating it

had "no difficulty in holding that the inclusion in [the] demand letter to Excelsior of

references to appellant's criminal record falls outside of the [Civil Code] section 47

[, subdivision] (b) privilege." (Id. at p. 151.) The court relied on the principle of Silberg

v. Anderson (1990) 50 Cal.3d 205, 212, that " '[a] statement . . . made in a judicial

proceeding is not privileged unless it has some reasonable relevancy to the subject matter

of the action.' " (Nguyen, at pp. 146-147.) It explained: "[W]e think any 'connection'

between such a conviction and the civil unfair competition focus of Horton's demand

letter is, to be charitable about it, tenuous. Respondents attempt to 'connect' the

statements regarding appellant's criminal record with the dispute by arguing that the

former 'may have persuaded Excelsior that [appellant] was more than capable of

committing unfair business practices since he had been convicted of more serious crimes

in the past.' This contention borders on the specious. First, the 'unfair business practices'

of which Proton and its attorneys complained in their March 29 letter are not 'crimes.'

Second, one's proclivity to engage in such practices is in no way, shape or form

predictable by whether he (a) beats his wife (b) shoots at unoccupied cars, or (c) commits

vandalism." (Ibid., italics added.) The court pointed out that courts have declined to

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apply the litigation privilege when an attorney threatens or misrepresents the existence of

criminal proceedings. (Id. at p. 152.)

Thus, in Nguyen, supra, 69 Cal.App.4th 140, the court found no relevance to the

mention of a party's criminal history in connection with a civil unfair business practices

lawsuit. This case, unlike Nguyen, involves an anticipated civil restraining order against

an allegedly harassing course of conduct, and thus Farber's reference to Corbin being

"clearly insane" was not so irrelevant or attenuated to that proposed proceeding to take

Farber's e-mail, which also asked his counsel to commence those proceedings, outside of

the litigation privilege. Farber's ultimate lack of success in that matter, or his motives

and intentions in making his statement, have no bearing on whether the litigation

privilege applies.7 Our conclusion is in keeping with the settled principle that the

privilege is to be construed broadly, and that doubts must be resolved in favor of applying

it. (Hawran v. Hixson, supra, 209 Cal.App.4th at p. 283; Tom Jones Enterprises, Ltd. v.

County of Los Angeles (2013) 212 Cal.App.4th 1283, 1294; Wang v. Heck (2012) 203

Cal.App.4th 677, 684.) "Although 'the litigation privilege has its costs, " '[i]t is desirable

to create an absolute privilege . . . not because we desire to protect the shady practitioner,

7 We observe that in arguing against applying the privilege, Corbin repeats her
arguments that appellants' e-mails were not a sincere and good faith proposal of legal
action, but rather a negotiating tactic in the larger dispute with Pacific Terrace. In
making this argument, she points out that while Farber threatened to call police, he did
not. But Farber's statement, "I am calling the cops to put a complaint," is not a threat of
criminal prosecution or a representation about the existence of criminal proceedings. In
any event, such a remark is not an injurious defamatory statement.
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but because we do not want the honest one to have to be concerned with [subsequent

derivative] actions . . . .' " ' " (Wang v. Heck, at pp. 686-687.)

Because the litigation privilege bars Corbin's defamation claim as a matter of law,

she cannot demonstrate a probability of prevailing on the merits of that cause of action.

DISPOSITION

The order is reversed and the matter remanded with directions that the superior

court enter a new order granting appellants' Code of Civil Procedure section 425.16

special motion to strike. Appellants are awarded costs on appeal. Their entitlement, if

any, under section 425.16 to reasonable attorney fees and costs incurred on the motion in

the trial court and on appeal shall be determined by the superior court on remand. (Kenne

v. Stennis, supra, 230 Cal.App.4th at p. 974; Kurz v. Syrus Systems, LLC (2013) 221

Cal.App.4th 748, 766-767.)

O'ROURKE, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.

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